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Slightly more than three years after her marriage ended bitterly, Pleasanton resident Susan Navarro asked a court for permission to move to Cleveland with her two young boys. Her ex-husband, Gary LaMusga, strongly objected, setting in motion a contentious and closely watched family law battle that, on Monday, finally landed in front of the California Supreme Court. In a room packed with family lawyers hanging on every word, the court debated what standards a trial court must apply in determining when and if custodial parents are allowed to relocate with their children over a non-custodial parent’s objections. Courts have generally held that the best interests of the children must be paramount. But, the father’s lawyer argued, they haven’t been taking into account all pertinent factors in figuring out what that means. During arguments, Justice Joyce Kennard went to the heart of the dispute by immediately asking the father’s lawyer whether the justices had resolved the issue in In re Marriage of Burgess, 13 Cal.4th 25. That 1996 ruling held that the custodial parent has the presumptive right to move unless a change in location would be detrimental to the children. “There is a presumptive right to move,” Oakland solo practitioner Garrett Dailey responded. “But that does not equate to an absolute right to move.” Navarro and LaMusga split in 1995 following a six-year marriage. Their divorce was final in 1997, but since then interactions between the couple have been mostly negative, and only got worse in 2001 when Navarro petitioned to move to Ohio. Navarro planned to attend law school there, while her new husband, Todd, took on a lucrative position as an automobile sales manager in Cleveland. A Contra Costa County Superior Court judge blocked the move, partly on a psychiatrist’s report that the move could sever the father’s already tenuous relationship with his two boys. San Francisco’s First District Court of Appeal reversed in 2002, saying the trial court had erroneously focused on the father’s interests, not the children’s. On appeal, LaMusga is arguing that the courts of appeal have wrongly interpreted Burgess as a bright-line rule permitting moves by the custodial parent, without considering the unique facts of each case. While not tipping their hand on Monday, the justices’ questions hinted at clarifying the rule once and for all. But interrogations by justices Kennard, Kathryn Mickle Werdegar and Marvin Baxter indicated some reluctance at tampering with the law. Werdegar wondered aloud to Dailey about what an appeal court should do. Should the justices apply the presumption that a move is allowed, or give the trial court deference in drawing its own conclusions based on psychiatric reports? Kennard questioned which was worse for the child — moving far away from their father, or the possibility that the father could get custody if the mother insists on moving. Werdeger, Kennard and Baxter all seemed to be searching for some sort of balancing test. “The question could be asked, ‘What causes the greater detriment? To move with mom to another state, or a change in custody?’” Kennard said. Davis solo Tony Tanke, who represented the mother, said “relative detriment” should be the standard. “And we necessarily have to do that,” he said. “In this particular case, the trial court did not do that. The trial court focused, instead, on what harm will occur to the father.” Tanke continued by saying that the family’s psychologist, Philip Stahl, never said there was substantial evidence that a move would terminate the children-father relationship. “He pointed to risks. He pointed to difficulties,” Tanke argued. “But he never said there would be a severing of the child-father relationship.” Justice Baxter, as he likes to do, offered up a complicated scenario. What if, he asked Dailey, the custodial parent has a life-or-death reason for wanting to move away — to seek medical attention, not just move for better weather? Is that a factor? “It has to be,” Dailey said. A parent wanting to move for medical reasons or even if transferred out of state by a job would have a valid reason, he said. It “would be silly” for a judge to deny that out of hand, he said, but it would be only one part of the analysis of the children’s best interests. The bottom line, Dailey said, is that courts are wrongly interpreting Burgess, and that must change. “The judge below us had overwhelming evidence of detriment,” he argued, “and he was reversed. Why? Because Burgess is being applied as a bright-line rule.” On a side note, Navarro, her husband and the two boys, Garrett and Devlen, now ages 11 and 9, were allowed in a later proceeding to move to Arizona, where Navarro’s husband has a high-paying auto sales job. The couple has since had a daughter also. No matter the outcome of Monday’s case, In re Marriage of LaMusga, S107355, the ruling would send the case back to Contra Costa County Superior Court, where it would be determined whether the boys will have return to California. A ruling is expected within 90 days.

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